- 8 - respondent has no authority to require it to use an inventory method of accounting when there is nothing on hand at the end of the day to count. Finally, petitioner argues that the asphalt is neither merchandise nor an income-producing factor. Petitioner deducted the cost of the asphalt as a supplies expense under section 162 and section 1.162-3, Income Tax Regs. Section 162(a) allows a deduction for "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business". Section 1.162-3, Income Tax Regs., provides in pertinent part: Cost of materials.--Taxpayers carrying materials and supplies on hand should include in expenses the charges for materials and supplies only in the amount that they are actually consumed and used in operation during the taxable year for which the return is made, provided that the costs of such materials and supplies have not been deducted in determining the net income or loss or taxable income for any previous year. * * * The statute and regulations do not define "merchandise" or "inventory", nor do they clearly distinguish between "materials and supplies" that are not actually consumed and remain on hand, and inventory. However, we must decide whether the emulsified asphalt petitioner uses is a supply within the meaning of section 162 or inventory within the meaning of section 471. We begin by acknowledging that the authorities in this area are not easily reconcilable.5 5 See Nolan, “Can the Cash Method of Accounting Clearly Reflect Income?” Tax Notes 1063 (Feb. 24, 1997) and 1175 (March (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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